Wednesday, February 26, 2014

Disability angle in Nursery admission norms - HC issues notice to centre

Nursery norms: Centre to clarify on disability quota
TNN | Feb 26, 2014, 02.19 AM IST


NEW DELHI: The High Court on Tuesday asked the Centre to clarify if Delhi's schools still have the discretion to provide admissions in nursery classes to disabled kids, despite the Lieutenant Governor's guidelines clubbing them with children of economically weaker groups (EWS).

A bench of justices S Ravindra Bhat and R V Easwar gave a day's time to the Centre to explain after the latter told the court it is up to the Delhi government to make guidelines for providing any benefit to disabled kids since the city government has enough "elbow room" despite the LG's order.

But HC was not satisfied and questioned the Centre's stand saying "no elbow room is visible" under the guidelines or the Persons with Disabilities Act. It added that if no proper guidelines are framed for providing relief to disabled students, the "discretionary approach" of schools will get an "escape route".

"If you (Centre and Delhi governments) don't come out with guidelines, it could lead to an escape route to the discretionary approach of schools," the bench said and kept the matter for Wednesday after the counsel, appearing for the Centre, said its officials would be present in the court to explain the government's stand.

The bench was hearing a PIL, by Pramod Arora, father of a child with special needs, challenging the LG's nursery admission guidelines to the extent it clubs disabled children with kids from EWS group. His petition also seeks 3% reservation for disabled kids in the nursery class.

During the day's proceedings, the Centre said it is for Delhi government to evolve guidelines on the issue but the court pointed out only when the Centre asks the state government to do so will it acts.

It also asked the Centre to "see what is possible under the Act", whether 3% reservation is possible and if yes, how to implement the same.

Meanwhile a group of parents on Tuesday also challenged the points for interstate transfer in the new nursery admission guidelines. A bench of acting Chief Justice and Justice Siddharth Mridul sought a reply from the state government and posted the case for Thursday.

Source: Times of India

Defence Personnel get a raw deal, disabled are worst hit

Please refer to my earlier post dated 11 Feb 2014 titled: Department of Ex-Servicemen Welfare working against the interest of Disabled Soldiers

Defence Personnel  or Ex-Servicemen are at a great disadvantage in respect of pay, pension and medical benefits compared with civilian government employees. It is none other than their own department called Department of Ex-servicemen Welfare who is working against their interest and resorting to appeals against all orders of Armed Forces Tribunal that went in favour of the soldiers. 

FRONTLINE Article

Over the past five years, ex-servicemen have been agitating against the injustice meted out to them by the Central government. They have lost faith in the Department of Ex-Servicemen Welfare (DESW), created specifically to take care of their welfare. Ex-servicemen have won 90 per cent of the cases filed in the Armed Forces Tribunals and the Supreme Court against the government, but the government has appealed in all the cases through the DESW.

The veterans have approached the Prime Minister and the Defence Minister to seek redress in numerous cases where they felt injustice had been done to them but to no avail. The Supreme Court’s judgments in their favour have either not been implemented or not been implemented in letter and spirit in cases pertaining to disability pensions, payment of arrears with retrospective effect from January 1, 2006, rank pay, and hospital charges on authorised Ex-servicemen Contributory Health Scheme (ECHS) rates for medical treatment abroad.

The government files en masse appeals against retired defence personnel whenever any case relating to pension benefits is decided in their favour by any court of law or the Armed Forces Tribunal. Facing the brunt of the government’s apathy is the category of disabled and war-disabled soldiers. Most of the special leave petitions and appeals filed by the Ministry of Defence in the Supreme Court are against the grant of disability or war injury benefits to disabled and war-disabled soldiers. As a result, the veterans are forced into expensive litigation.

Over 3,000 cases decided in favour of defence personnel by the Armed Forces Tribunal have not been implemented; the Defence Ministry has contested all these judgments in the Supreme Court. Imagine the plight of a widow of a sepoy living in a far-flung rural area. How is she going to find the resources to fight her case in the Supreme Court? The tribunals were created for delivering speedy justice to defence personnel at minimum cost. But the Ministry’s decision to appeal against the tribunal’s judgments has not only delayed justice but also made it near impossible for the defence personnel to fight their cases. The Armed Forces Tribunals do not have contempt powers to get their judgments implemented whereas Central Administrative Tribunals (CATs) are vested with such powers.

This is the biggest cause of heart burning in the military community today. Military personnel with non-service-related disabilities discharged with less than 10 years of service remaining are not entitled to any form of pension, whereas the employment of civilian employees who “acquires a disability during his service” is protected under Section 47 of the Persons with Disabilities Act, 1995.

As per the Sixth Central Pay Commission recommendations, all government servants are allowed three assured career progressions. Civilians who retire at the age of 60 are allowed promotions at 10, 20 and 30 years of service, and soldiers at eight, 16 and 24 years. However, since jawans are forced to retire early, largely between 15 and 19 years of service, to keep up the young profile of the forces, they miss out on at least one assured career progression, unlike their civil counterparts, who serve their full term until superannuation. It has been proposed to the government that the third career progression should be given to jawans automatically; they should be promoted to the rank of naib subedar at the time of retirement. Surprisingly, this demand has not been accepted.

Widow’s pension

Widow’s pension is one area of concern to the defence community that has received little attention from the government. A sepoy’s widow pension has remained a meagre Rs.3,500 a month while other sections of government employees have received periodic increases in such pension. The minimum family pension in respect of defence widows must be enhanced from Rs.3,500 to Rs.10,000 a month.

It is common knowledge that soldiers retire ahead of their time. What is not known, however, is that their life expectancy is shorter than that of civilians. The Institute of Applied Research in Manpower Analysis (IARM), which studied the lifespan of civilian employees at the behest of the Fifth Pay Commission, arrived at 77 years as the average life expectancy of a civilian government servant. The Railways conducted a similar exercise for their personnel and assessed that they achieved an average lifespan of 78 years. No such study was conducted for defence personnel since it was generally believed that soldiers lived longer than civilians. However, Major General (retired) Surjit Singh, AVSM (Athi Vishisht Seva Medal), VSM (Vishisht Seva Medal), who headed the Army Cell of the Fifth Pay Commission, carried out a detailed study in 2005 along with other experts. The study revealed that the average lifespan of defence officers was 72.5 years; that of junior commissioned officers (JCOs) 67 years; and that of other ranks was between 59.6 and 64 years.

These findings were forwarded to the Chief of the Army Staff General J.J. Singh on July 7, 2005, by Lieutenant General (retd) M.M. Lakhera, PVSM (Param Vishisht Seva Medal), AVSM, VSM, who was Lieutenant Governor of Puducherry. The findings were reported by all national newspapers and a question was asked in Parliament on the subject. Pranab Mukherjee, who was the Defence Minister then, maintained that the issue would be examined in detail. Nothing was heard about it after that.

Stress and strain of early retirement is one of the major reasons for the lower life expectancy among the defence personnel. Their legitimate demand for an assured second career until the age of 60 through an Act of Parliament has not yet been accepted.

While the pensions of all ranks were enhanced with effect from September 24, 2012, to redress the anomaly of the Sixth Pay Commission, the request to enhance the pension of JCOs proportionately was not granted. Majors with 13 years and more of service who retired before 2004 have been denied the benefit of the rank of lieutenant colonel (that is, the benefit of pay band-4 in the revised scale of the Sixth Pay Commission).

The government’s policy to grant lieutenant colonel rank on completion of 13 years of service was made applicable with effect from 2004. It would have been only just to grant all those who retired before 2004 in the rank of major with 13 years of commissioned service (this number being finite) the benefit of pension on the scale of lieutenant colonel. The strong plea in this regard has not been accepted.

Also, the non-functional upgrade (NFU) granted to civilian employees has been denied to defence personnel, thereby putting them at a disadvantage.

One Rank One Pension

One of the major demands of veterans is same pension for same rank and same length of service, that is, same rank + same length of service = same pension, irrespective of the date of retirement. They want a legislative guarantee to this. Although all major political parties have agreed to this in principle and frequently incorporate it in their election manifestos, this 40-year-old demand has not been implemented. The bureaucratic excuses in the form of administrative, legal and financial hurdles in implementing the demand were heard in detail in 2011 by the Rajya Sabha Petition Committee set up to look into all aspects of the demand and rejected them in the strongest terms. Prime Minister Indira Gandhi had agreed to this provision in principle, but her untimely death scuttled the proposal. Successive Standing Committees on Defence and the Rajya Sabha Petition Committee have recommended this but to no avail.

Before 2006, the difference in the pensions of Major General and Lieutenant General was only Rs.1,400. Subsequently, it became Rs.700. With the extension of higher administrative grade (HAG) and HAG+ to the rank of Lieutenant General and above, the difference in pension is more than Rs.8,000 even after the increase with effect from September 24, 2012. The government has overlooked the Sixth Pay Commission recommendations, which suggested that all government employees with a basic pay of Rs. 20,000 and above be clubbed under the same pay band. Major Generals retire with a basic pay of Rs.22,400 and above while Lieutenant Generals retire with a basic pay of Rs.23,500 and above. Non-inclusion of major generals in HAG has caused an anomaly.

On losing the case, the Defence Ministry filed a review petition in the Supreme Court, denying enhanced arrears to army pensioners as ordered by the Delhi High Court with retrospective effect from January 1, 2006, instead of September 24, 2012.

Civilian employees are provided health care under the Central Government Health Scheme (CGHS) while ex-servicemen are covered under the ECHS. The provision of budget for the CGHS is calculated (for 2013-14) at the rate Rs.10,700 for every beneficiary while for the ECHS, it has been budgeted at Rs.3,150 a beneficiary. As a result, super-speciality hospitals do not offer themselves for ECHS empanelment. Over 80 per cent of the health care units have withdrawn from empanelment in view of delayed payment of bills and inadequate rates for various medical procedures. This has resulted in unsatisfactory or poor medical care for ex-servicemen. Sophisticated procedures have not been included in the ECHS. The veterans’ request for inclusion of the latest medical procedures on the ECHS benefits list has not been accepted yet. Ex-servicemen had requested that the budget be enhanced and not be less than the CGHS rates.

Here is an example to illustrate the poor nature of health care benefits provided by the government to ex-servicemen. Non-availability of funds with the ECHS and, as a consequence, non-payment of hospital dues made an empanelled hospital in Gurgaon in the National Capital Region to stop accepting patients for cashless medical treatment. Ex-Subedar Prakash Chandra Tomar from Meerut was brought to the hospital in a serious condition on December 8, 2013, which as per the ECHS scheme is permitted. The family was asked by the hospital authorities to deposit the money for the treatment or transfer the patient to some other hospital. Since the condition of the patient was serious, the family raised a loan and deposited Rs.11 lakh for 20 days of hospitalisation and treatment.

When the family was in no position to arrange further funds, Tomar’s son, Raj Kumar Tomar, approached the Indian Ex-Servicemen’s Movement (IESM) and the case was taken up with the Managing Director of the ECHS, who promised to get cashless treatment. But he did not succeed. The family deposited another Rs.2 lakh in the hospital. On January 1, Subedar Prakash died. The hospital did not accede to the request of the ECHS to release the body and insisted that the family clear the hospital bills.

In November 2008, the government had announced that in future there would be a separate pay commission for the defence forces. The defence fraternity feels betrayed as the government has not constituted a separate pay commission, and, as in the case of the previous commissions, there is no representation for defence forces in the newly constituted Seventh Pay Commission. Some 39 anomalies in defence pensions are yet to be resolved and with no defence representation in the new pay commission, more anomalies are likely to appear thereby increasing the magnitude of injustice already done to defence pensioners.

Denial of voting rights

It is surprising that serving defence personnel are denied the right to get themselves registered as voters at the place of posting. In spite of a clear judgment by the Supreme Court in 1971, this basic right has not been extended to soldiers. The option of postal ballot and proxy voting available to serving soldiers has not proved effective. There is no restriction imposed in the Representation of the People Act, 1950, to deny this right to defence personnel. There is an urgent need to restore this right immediately to allow serving soldiers to vote at their place of posting in the coming Lok Sabha elections.

The prevailing security environment calls for strong measures to upgrade the country’s defence preparedness in terms of manpower, equipment and weapon systems. Equally important are measures to keep the soldier’s morale high.

Source: Frontline

Sunday, February 23, 2014

SC directs Transport Allowance for Deaf Govt.Employees at par with other disabilities [Judgement Included]

After a prolonged battle at the Hon'ble Supreme Court in case WP(C) 107/2011, the deaf govt employees have finally being granted an equal treatment as far as the Transport allowance is concerned.

The Hon'ble Court held that when a person is having any of the disabilities mentioned in Section 2(i) of the Disabilities Act 1995 and is so certified by the Medical Doctor, he is entitled to the benefits of all the Schemes and benefits provided by the Government and there can be no further discrimination among the persons with varied or different types of disabilities since no such discrimination has not been envisaged under the Disabilities Act.  The Court was also of the view that the travel undertaken by the deaf and hearing impaired employees is equally arduous and burdensome as compared to persons having other disabilities.

Judgement
Click here to access the accessible version of  judgement dated 12 Dec 2013 in WP(C) No. 107/2011 Titled as Deaf Employees Welfare Association and Another v/s Union of India and Others on double transport allowance for the deaf.

New OM Issued by Min. of Finance
In response to the above judgement, now Min. of Finance has issued an OM No.21(2)12011-E.II(B) dated 19.02.2014 on the subject, the contents whereof are as below.The contents seriously disregard the language used to refer to persons with hearing impairment or deaf persons as "dumb".

No.21(2)12011-E.II(B)
Government of India
Ministry of Finance
Department of Expenditure
North Block, New Delhi,
Dated: 19th February, 2014

OFFICE MEMORANDUM

Subject- Grant of Transport Allowance to Central Government Employees – Extension of benefit of Transport Allowance at double the Normal Rates to Deaf and Dumb Employees – Implementation of the Order of the Apex Court – regarding.

The undersigned is directed to refer to Order dated 12th December, 2013 of the Hon’ble Supreme Court of India in Writ Petition (Civil) No. 107/2011 of Deaf Employees Welfare Association and Another v/s Union of India and Others, and to say that in compliance of the said judgement of the Apex Court, it has been decided to extend the benefit of Transport Allowance, as admissible to blinds and orthopaedically handicapped employees in terms of para 2 (i) of Ministry of Finance, Department of Expenditure O.M. No.21(2)/2008-E.II(B) dated 29th August, 2008, to deaf and dumb employees of the Central Government also, with immediate effect, subject to the condition that the recommendation of the Head of ENT Department of a Government Civil Hospital is received by the Head of Department and fulfilment of other conditions mentioned in Ministry of Finance, Department of Expenditure O.M.No, 19029/1/78-E IV(B) dated 31st August, 1978 read with O.M. dated 29.08.2008.

2. In so far as the persons serving in the Indian Audit and Accounts Department are concerned, this Order issues in consultation with the Comptroller and Auditor General of India.

sd/-
(Subhash Chand)
Deputy Secretary to the Government of India

Here is the Image of the above Memorandum




Wednesday, February 12, 2014

Failure to implement Disabilities Act makes Madras High Court initiates Contempt Proceedings against Chief Secretary

Hi,

Here is a news coming from Madras High Court. Though the notices of the contempt have been delayed at the request of Advocate General but it indicates the seriousness with which the Court is looking at the continued defiance.

Times of India and The Hindu have covered the stories as below. More soon....

Times of India


A Subramani,TNN | Feb 11, 2014, 01.06 PM IST

CHENNAI: Lambasting top bureaucrats of Tamil Nadu for their failure to furnish data relating to backlog of vacancies for disabled persons in various government departments, the Madras high court has initiated contempt of court proceedings against chief secretary Sheela Balakrishnan and two other officers.

According to the statute, there shall be reservation of 3% of all available vacancies for disabled persons. While the court had passed necessary orders nearly two years ago, the issue gained importance after last month's Supreme Court ruling directing all state governments to set apart 3% of all available vacancies for disabled persons.

Justice S Manikumar, pointing out that at least 23 government departments have not furnished required details of backlog vacancies despite several adjournments and directives, said: "Though repeatedly, this court has issued orders to identify the posts in 'A', 'B', 'C' and 'D' categories and consequently, to fill up the posts as expeditiously as possible, the process is on and on and from the materials produced before this court, out of 34 secretarial heads, 140 Heads of Departments, 102 government undertakings, including universities and 54 companies owned and controlled by the government, only 70 HoDs have furnished the details of 'A', 'B', 'C' and 'D' categories."

"So far, 50 out of 102 government undertakings and boards, etc., have furnished the details. No clear details have been furnished by about the 54 companies owned and controlled by the government," Justice Manikumar said.

He then said: "This court is constrained to issue contempt notices to Sheela Balakrishnan, chief secretary of Tamil Nadu and head of Monitoring Committee for Differently Abled, P Sivasankaran, secretary of Welfare of Differently Abled department and Manivasan, commissioner for the differently abled, to explain as to why further course of action should not be taken under the Contempt of Courts Act. Registry is directed to issue necessary statutory notices to the above said persons."

However, after advocate-general A L Somayaji requested the court to postpone the issuance of the statutory notice, which would require the personal appearance of the officers concerned, the judge said the officers could make necessary applications if they complied with directions of the high court and the Supreme Court.


The Hindu




CHENNAI, February 12, 2014

K.T. SANGAMESWARAN

Observing that the differently-abled have been taken for a ride by the State government, the Madras High Court has ordered issue of contempt notices to three top officials, including the Chief Secretary, for violating the orders of the High Court and the Supreme Court in the matter of filling up vacancies in ‘A’, ‘B’, ‘C’ and ‘D’ categories by differently-abled persons.

Besides the Chief Secretary, Sheela Balakrishnan, notices were ordered to be issued against the Secretary, Welfare of Differently-Abled Persons Department, P.Sivasankaran and the State Commissioner for the Differently-Abled, Manivasan.

Following the Advocate-General, A.L.Somayaji’s request to postpone the issue of the notice, Justice S.Manikumar ordered that if the officials concerned comply with the Court directions in letter and spirit, they could file necessary applications.

Passing an interim order on three writ petitions filed in 2004, the Judge said the Court had, in April 2012, directed the authorities to identify ‘A’ and ‘B’ posts in government departments, boards, public sector undertakings, corporations, companies owned by the government and educational institutions. Subsequently, the government had issued a G.O. on January 29 last year directing the establishments to identify the posts and to implement the three per cent reservation for the differently-abled.

Mr. Justice Manikumar said no details had been furnished, as to whether the Secretaries had implemented the instructions given.

Though repeatedly the Court issued orders to identify the posts under the four categories and fill up the posts as expeditiously as possible, the process was getting delayed.

Only 50 out of the 102 government undertakings, boards, etc., had furnished the details. No clear details had been furnished about 54 government-owned companies. He said the authorities were seeking adjournments time and again.

During the last hearing, the State Commissioner for the Differently-Abled filed an affidavit taking a different stand altogether and submitted that the whole process should be reworked considering the Tamil Nadu Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules.






Tuesday, February 11, 2014

Department of Ex-Servicemen Welfare working against interests of Disabled Soldiers

This is how our bureaucracy treats the disabled! If any ex-serviceman and disabled soldier moves a case for disability  pension benefits against Ministry of Defence, he will be challenged all the way up to Supreme Court, ruled the Department of Ex-Servicemen Welfare (DESW) - a wing of Min. of Defence on 02 Jan 14.

In other words, a disabled soldier or war veteran either accepts what is doled out as charity or be ready to fight a losing battle even after winning the case in Armed Forces Tribunal in next two superior courts. Reason- Babus feel that reference to legal opinion is time consuming and involves lot of paper work hence the department will appeal automatically against each case won by the soldiers- first in High Court and then in SC. That means babus will pay hefty fee (from tax payers' money) to the standing counsels but not release legal dues ordered by its own Tribunal to the deserving soldiers...!  It is not a challenging guess as to how many disabled soldiers or veterans can afford to keep fighting from the Armed Forces Tribunal to the High Court to the Supreme Court!

An elected representative in parliament went on to write that the impugned order smacked of callousness and high handedness on the part of the Government and that the order would aggravate the misery of those who have lost their limbs or eyesight or sustained any other grievous harm in the service of the nation.

Its only after the hue and cry for over a month against MoD's heartless and desperate effort to "tire the disabled out" in the autumn of their lives, the defence minister has personally intervened.

Thank you Mr. Antony for intervening and withdrawing this most unreasonable rule thrown at the face of those who gave the nation their prime time of life, though after more than a month!

See Related Links:

Disabled Ex-servicemen get breather from Antony
http://epaper.mailtoday.in/showtext.aspx?boxid=34956953&parentid=90673&issuedate=1122014

Army Chief to Protest Defence Ministry treatment of Ex-servicemen
http://www.business-standard.com/article/economy-policy/army-chief-to-protest-defence-ministry-treatment-of-ex-servicemen-114011500026_1.html  

Resolve issue of pension of disabled soldiers: Smriti to govt.
http://archive.indianexpress.com/news/resolve-issue-of-pension-of-disabled-soldiers-smriti-to-govt/1156349/0

Voluntarily retired soldiers entitled to disability pension

Now, all disabled soldiers to get disability pension
http://articles.timesofindia.indiatimes.com/2012-08-04/india/33034927_1_disabled-soldiers-disability-pension-lt-gen-ns-brar